Citation Nr: 21008436 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 13-28 622A DATE: February 17, 2021 REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a lower back disorder is remanded. Entitlement to service connection, to include on a secondary basis, for a right hip disorder is remanded. Entitlement to service connection, to include on a secondary basis, for a left hip disorder is remanded. Entitlement to service connection, to include on a secondary basis, for a left knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1958 to November 1962. In January 2017, the Veteran and his spouse testified at a travel board hearing before the undersigned. The transcript has been added to the record. In September 2019, the Board issued a decision denying the claims of service connection for a neck disorder, a low back disorder, a right hip disorder, a left hip disorder, and a left knee disorder. The Veteran filed an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC) contesting the Board’s September 2019 decision. In an August 2020 joint motion for partial remand, CAVC remanded the Board’s denial of service connection for a neck disorder, a low back disorder, a right hip disorder, a left hip disorder, and a left knee disorder because the Court believed that the Board erred by not ensuring that VA complied with its duty to assist to obtain private medical records. Specifically, that VA should obtain private treatment records from Dr. David P. Hebert, pursuant to a June 2005 authorization form. By this remand, the Board intends no determination, explicit or implied, as to the credibility of any statements of record. 1. Entitlement to service connection for a neck disorder is remanded. 2. Entitlement to service connection for a lower back disorder is remanded. 3. Entitlement to service connection, to include on a secondary basis, for a right hip disorder is remanded. 4. Entitlement to service connection, to include on a secondary basis, for a left hip disorder is remanded. 5. Entitlement to service connection, on a secondary basis, for a left knee disorder is remanded. In order to comply with the Court’s remand instructions, a remand is necessary to obtain the private treatment records from Dr. David P. Hebert, pursuant to a June 2005 authorization form. The Court explained that in May 2005, the RO sought private treatment records from Dr. Hebert, but he sent private treatment records for the wrong person. Thus, it is necessary to obtain the right private treatment records that pertain to the Veteran’s medical history. Moreover, the Veteran submitted a private medical opinion in October 2020. In this medical opinion, the examiner opined that the September 1960 car accident caused damage to the soft tissues of the Veteran’s spine and that the cause of the low back pain following the accident was more likely than not injury to the soft tissue of the spine. The examiner further explained that this damage would not have shown up on his x-rays and, especially in the absence of muscular spasms, is a medically plausible cause of his chronic back and neck complaints and early degeneration of the discs and facet joints. The examiner also explained that studies show that there is a relationship between lower back pathology and the development or aggravation of degenerative changes in the joints of the lower extremities, such as the hip, knees, ankles, and feet. The examiner opined that it is more likely than not that the Veteran’s chronic back pain led to an alteration in the forced applied to his lower extremities, resulting in early degenerative chances, and as a result, chronic hip and knee pain. He furthered that the hip and knee degeneration and chronic pain are more likely than not related to the trauma sustained in the collision of 1960. Because the medical examiner from the October 2020 opinion included medical literature to reach his opinion, the Veteran must be afforded new VA examinations and opinions to include this reasoning in each rationale. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. David P. Hebert. Make two requests for the authorized records from Dr. David P. Hebert, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for his neck disorder. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is the neck disability at least as likely as not (50 percent or higher) related to service, including the September 1960 car accident. Provide a rationale to support the opinion. The rationale must consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. The examiner must also consider the October 2020 private medical opinion and include an analysis regarding the medical studies conducted by Manohar M. Panjabi and Dr. Ian J. Harrington. 3. Schedule the Veteran for a VA examination for his low back disorder. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is the low back disability at least as likely as not (50 percent or higher) related to service, including the September 1960 car accident. Provide a rationale to support the opinion. The rationale must consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. The examiner must also consider the October 2020 private medical opinion and include an analysis regarding the medical studies conducted by Manohar M. Panjabi and Dr. Ian J. Harrington. 4. Schedule the Veteran for a VA examination for his right and left hip disabilities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Are the right and left hip disabilities at least as likely as not (50 percent or greater) proximately due to the Veteran’s neck or low back disability? The examiner must provide a thorough rationale and must opine whether the right and left hip disabilities were caused by the neck and low back disability - both disabilities must be addressed. Moreover, even if it is found that the Veteran is not service connected for either the neck or low back disability, the examiner must still opine as to whether the hip disabilities were caused by either the neck, low back, or both disabilities. Moreover, the examiner must also consider the October 2020 private medical opinion and include an analysis regarding the medical studies conducted by Manohar M. Panjabi and Dr. Ian J. Harrington. 5. Schedule the Veteran for a VA examination for his left knee disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is the left knee disability at least as likely as not (50 percent or greater) proximately due to the Veteran’s neck or low back disability? The examiner must provide a thorough rationale and must opine whether the left knee disability was caused by the neck and low back disability – both disabilities must be addressed. Moreover, even if it is found that the Veteran is not service connected for either the neck or low back disability, the examiner must still opine as to whether the left knee disability was caused by either the neck, low back, or both disabilities. (Continued on the next page)   Moreover, the examiner must also consider the October 2020 private medical opinion and include an analysis regarding the medical studies conducted by Manohar M. Panjabi and Dr. Ian J. Harrington. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.